Citation Nr: 0833687
Decision Date: 09/30/08 Archive Date: 10/07/08
DOCKET NO. 05-19 647 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to service connection for a skin disability, to
include as due to an undiagnosed illness related to service
in the Persian Gulf War.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
S. Heneks, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1987 to
November 1991, October 2001 to October 2002, and July 2003 to
May 2004.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Baltimore, Maryland, which denied the benefit sought on
appeal.
In April 2007, the veteran presented testimony at a personal
hearing conducted at the Board in Washington, DC before the
undersigned Veterans Law Judge (VLJ). A transcript of this
personal hearing is in the veteran's claims folder.
In June 2007, the Board remanded the issue on appeal for
further development and also for the issuance of a statement
of the case (SOC) for the matter of entitlement to an
increased evaluation for service-connected post traumatic
stress disorder (PTSD). A July 2008 SOC on that issue has
been associated with the claims file. However, as there is
no substantive appeal with that issue of record, the matter
of entitlement to an increased rating for PTSD is not
currently before the Board. Given that the Board is granting
the veteran's claim on appeal and that an SOC was properly
issued, the Board finds that VA has substantially complied
with the Board's July 2007 remand with regard to this appeal
and no prejudice has resulted. See Dyment v. West, 13 Vet.
App. 141, 146-47 (1999) (remand not required under Stegall v.
West, 11 Vet. App. 268 (1998) where Board's remand
instructions were substantially complied with).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran has had a chronic skin rash since 1991 during
his first period of active duty from November 1987 to
November 1991.
CONCLUSION OF LAW
Service connection is warranted for eczematous dermatitis.
38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 &
Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran and his representative contend that the veteran's
skin disability began during his service in Saudi Arabia in
1991. Because the claim on appeal is being granted, there is
no need to review whether VA's statutory duties to notify and
assist are fully satisfied as any error would be non-
prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2007); see also 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2007).
LAW AND ANALYSIS
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty in the active military, naval, or air
service. 38 U.S.C.A. § 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
In sum, in order to establish direct service connection for a
disorder, there must be (1) medical evidence of the current
disability; (2) medical, or in certain circumstances, lay
evidence of the in-service incurrence of a disease or injury;
and (3) medical evidence of a nexus between the claimed in-
service disease or injury and the current disability.
Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing
Hickson v. West, 12 Vet. App. 247, 253 (1999)).
Under the provisions of specific legislation enacted to
assist veterans of the Persian Gulf War, service connection
may be established for a qualifying chronic disability which
became manifest either during active service in the Southwest
Asia theater of operations during the Persian Gulf War or to
a degree of 10 percent or more not later than December 31,
2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). The
term "qualifying chronic disability" means a chronic
disability resulting from an undiagnosed illness; a medically
unexplained chronic multisymptom illness (such as chronic
fatigue syndrome, fibromyalgia, and irritable bowel syndrome)
that is defined as a cluster of signs or symptoms; or, any
diagnosed illness that VA determines in regulations warrants
a presumption of service connection. 38 U.S.C.A. §
1117(a)(2).
Signs or symptoms that may be a manifestation of an
undiagnosed illness or a chronic multisymptom illness
include: (1) fatigue, (2) unexplained rashes or other
dermatological signs or symptoms, (3) headache, (4) muscle
pain, (5) joint pain, (6) neurological signs and symptoms,
(7) neuropsychological signs or symptoms, (8) signs or
symptoms involving the upper or lower respiratory system, (9)
sleep disturbances, (10) gastrointestinal signs or symptoms,
(11) cardiovascular signs or symptoms, (12) abnormal weight
loss, and (13) menstrual disorders. 38 U.S.C.A.
§ 1117(g).
Among the requirements for service connection for a
disability due to an undiagnosed illness is that such
disability, by history, physical examination, and laboratory
tests, cannot be attributed to any known clinical diagnosis.
38 C.F.R. § 3.317(a)(1)(ii). There must be no affirmative
evidence that relates the undiagnosed illness to a cause
other than being in the Southwest Asia theater of operations
during the Persian Gulf War. See 38 C.F.R. § 3.317(c). If
signs or symptoms have been attributed to a known clinical
diagnosis in the particular veteran's case being considered,
service connection may not be provided under the specific
provisions pertaining to Persian Gulf veterans. See
VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998).
In rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence that it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990). Competency of evidence differs from
weight and credibility. The former is a legal concept
determining whether testimony may be heard and considered by
the trier of fact, while the latter is a factual
determination going to the probative value of the evidence to
be made after the evidence has been admitted. See Rucker v.
Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet.
App. 465, 469 (1994); see also Cartwright v. Derwinski, 2
Vet. App. 24, 25 (1991) ("Although interest may affect the
credibility of testimony, it does not affect competency to
testify.").
In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
veteran is entitled to service connection for a skin
disability. As a preliminary matter, the veteran is not
entitled to service connection for a skin disability under
the provisions of 38 C.F.R. § 3.317 because there is evidence
that his symptoms have been attributed to a known clinical
diagnosis. See VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998).
Further, there is no verification of record that the veteran
served in Saudi Arabia in 1991. As such, the Board will
consider the veteran's claim under the provisions of
38 C.F.R. § 3.303.
Turning to an analysis under the provisions of direct service
connection, the veteran contended most recently during his
April 2007 hearing that he developed a rash on his wrist and
abdomen in May 1991. He testified that he sought treatment
at that time and was given Hydrocortisone cream. He added
that the rash has appeared sporadically since then. The
service treatment records reflected that during his first
period of active duty service from November 1987 to November
1991, an August 1987 enlistment examination did not contain
any complaints, treatment, or diagnoses of a skin condition.
The veteran opted not to have a separation examination in
October 1991. There was no evidence of a skin rash in the
service treatment records dated from 1987 to 1991. Although
it does not appear that any records are missing, the Board
notes that despite an additional attempt to obtain the
veteran's service treatment records from the Records
Management Center, Adjutant General, and the veteran's
military police unit in July 2007, it appears that the
available service treatment records were provided by Walter
Reed Army Medical Center in December 2004.
The veteran testified that he received treatment for his skin
rash and was prescribed a cream at a private hospital,
D.H.C., in the summer of 1992. However, although he was
asked to provide a release for his records in July 2007
pursuant to the June 2007 remand, a release has been
associated with the record. The veteran further testified
that he first sought treatment from VA in 1992 after his
return from the Gulf War. Although a request was made for VA
records dated from 1992 to 1994 in September 2007, no records
dated during that time frame were obtained. Therefore, the
first documented complaint of an itchy skin rash on the
veteran's abdomen was in a January 1994 VA treatment entry,
two years after his first period of active duty service.
Nevertheless, even though the first documentation of a skin
rash was not until January 1994, the Board notes that the
veteran is competent to give evidence about what he
experienced; i.e., he is competent to say that he had a skin
rash while in service in 1991. See Charles v. Principi, 16
Vet. App. 370, 374 (2002) (finding veteran competent to
testify to symptomatology capable of lay observation); Layno
v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay
evidence requires facts perceived through the use of the five
senses). Further, the Board finds his contention that he
first noticed the rash in service in 1991 to be credible as
it is consistent with the other evidence of record. In fact,
in 1994, the veteran told the doctor that he first developed
the rash after returning from the Persian Gulf.
Moreover, the veteran has indicated that his rash has
appeared sporadically since that time, which is consistent
with the evidence of record. Importantly, the evidence also
showed that the veteran has had a chronic rash documented
from 1994 to the present, including during his two additional
periods of active duty from October 2001 to October 2002 and
from July 2003 to May 2004. In this regard, VA treatment
records reflected that the veteran sought follow up treatment
for a rash in June and by October 1994, it had spread to his
neck, buttocks, right side, and forearms. The veteran
complained of a rash on his arms, back of his neck, and
abdomen in August 1995 that had occurred off and on.
Although a retention examination dated in March 1996 was
negative for complaints, treatment, or diagnoses of a skin
condition, an April 1997 examination noted that the veteran
had erythematous papular lesions on his umbilical cord
region. A September 1997 examination noted a recurring rash
on his neck, arms, and abdomen since 1991. The veteran
underwent a Gulf War registry examination in September 1997
that revealed a diagnosis of allergic dermatitis. Further,
when the veteran returned to active duty status in October
2001, he was concerned about a rash on his lower stomach. An
October 2002 VA treatment entry reflected that the veteran
had a rash on his abdomen for two months and the assessment
was questionable eczema. In January 2003, the veteran had a
pruritic red rash on the right lower quadrant of his abdomen
since returning from the Gulf War that had not responded to
topical treatment. The assessment was dermatitis of unclear
ideology. The examiner indicated that the veteran's belt
buckle might be causing the irritation and thought it
unlikely that toxic exposure from the Gulf War would cause a
prolonged, localized reaction in such a small area of the
body normally covered by clothing. A January 2003
dermatology entry had an assessment of eczematous dermatitis.
On a May 2003 mobilization report of medical history, the
veteran noted that he was treated by VA for a skin rash that
the examiner found not significant. Further, the May 2003
examination found that his skin was normal. A July 2003 VA
examination described the veteran's recurring abdominal rash
as red bumps that heal with a dark discoloration of the skin
that is pruritic. At the time of the examination, the
veteran had a slight discoloration of the skin. The
diagnosis was recurrent dermatitis. A November 2003
chronological record of medical care noted that the veteran
had a history of rashes in his abdominal area only that "come
and go" and that he used hydrocortisone cream with good
relief. The diagnosis was dermatitis. In December 2004, the
veteran was still listed as having a problem with dermatitis.
As such, the evidence supports the conclusion that the
veteran has had a chronic rash that has been diagnosed as
dermatitis since 1991.
Additionally, the December 2007 VA examiner concluded that
the veteran had eczematous dermatitis with pruritis.
Although he opined that it would be mere speculation to state
whether the eczematous dermatitis was the result of service
in Saudi Arabia, the examiner found that the veteran had a
chronic skin rash. However, the Board notes that the issue
is not whether any toxic exposure during the Gulf War caused
his skin rash; rather the issue is whether his skin rash
began during service. As discussed Board has concluded that
the veteran's assertions that he has had a rash, now
diagnosed as dermatitis, since service to be credible and
therefore after resolving all reasonable doubt in favor of
the veteran, entitlement to service connection for eczematous
dermatitis is granted.
ORDER
Entitlement to service connection for a skin disability,
diagnosed as eczematous dermatitis, is granted.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs